Usman S/o Shekh Mohammad Yusuf & Ors vs Vikram S/o Jagdish & Ors

By this Revision Petition under Section 115 of CPC, the defendants No. 2 to 13 have approached this court challenging the order of the Trial

Court dated 21.03.2017, whereby the petitioner''s application under Order 7 Rule 11 of the CPC for rejection of the plaint has been dismissed.

Learned counsel appearing for the petitioner placing reliance upon the judgement of the Supreme Court in the matter of NSS Narayana Sarma

and others Vs. M/s. Goldstone Exports (P) Ltd. and others reported in AIR 2002 SC 251 has submitted that since the present suit has been filed

to resist the execution of decree passed in earlier suit being CS No.321 A/1995, therefore, respondent (plaintiff) is required to file the objection

under Order 21 Rule 97 of the CPC in the execution proceedings and the separate suit is not maintainable. In this regard he has also placed

reliance upon Single Bench judgment in the matter of Mohd. Ayub Khan Vs. Ashif Ali and others reported in 2012(2) MPLJ 693.

Opposing the prayer, learned counsel for the respondents has submitted that the subject matter of the property in the present suit is different

from the earlier suit and such a disputed question of fact cannot be decided while hearing application under Order 7 Rule 11 of the CPC and that

the Trial Court has not committed any error in rejecting the application.In support of his submission he has placed reliance upon the judgment of

the Supreme Court in the matter of Popat and Kotecha Property Vs. State Bank of India Staff Association reported in 2006(I) MPWN Note

No.10 and the judgment of this Court in the matter of Union Bank of India Vs. Ravindra Phanse and others reported in 2007(4) MPLJ 492.

I have heard the learned counsel for the parties and perused the record.

Though in the application under Order 7 Rule 11 of the CPC several grounds were raised by the petitioner seeking rejection of plaint but at the

time of argument in the present revision petition, counsel for the petitioner has confined his argument to the issue that the present suit for declaration

and permanent injunction is not maintainable because the respondent is resisting the execution of the decree passed in the earlier suit, therefore, the

proper remedy available to the respondents is to file an application under Order 21 Rule 97 of the CPC in the execution proceedings.

On the perusal of the plaint, it is noticed that the respondent-plaintiff has filed the present suit seeking a declaration that the suit property is a

government land and the decree passed in C.S. No.321-A/1995 is not binding on the respondents, and the respondents should not be

dispossessed on the basis of the decree in that civil suit. In the plaint the main allegation of the respondents is that the suit property being House

No.33/2A, Moti Tabela, Street No.1 is different from the subject matter of suit in C.S. No.321A/1995 decreed on 11.9.2006, therefore, the

respondents cannot be dispossessed on the basis of the said decree and that the decree has been obtained by committing fraud. A perusal of the

plaint reveals that the present suit has been filed to resist the execution of the decree passed in C.S. No.321-A/95.

The Supreme Court in the matter of N.S.S. Narayana Sarma and others Vs. M/s. Goldstone Exports (P) Ltd. reported in AIR 2002 SC 251

has held that when any person claiming title to the property in his possession obstructs the attempt by the decree holder to dispossess him from the

said party, the executing court is competent to consider all questions raised by the person offering obstruction against execution of the decree and

pass appropriate order which under the provisions of Order 21 Rule 103 is to be treated as decree. The Supreme Court in the above judgment

has held as under:-

Provision is made in the Civil Procedure Code for delivery of possession of immovable property in execution of a decree and matters relating

thereto. In Order 21 Rule 35 provisions are made empowering the executing court to deliver possession of the property to the decree holder if

necessary, by removing any person bound by the decree who refuses to vacate the property. In Rule 36 provision is made for delivery of formal or

symbolical possession of the property in occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to

relinquish such occupancy. Rules 97 to 101 of Order 21 contain the provisions enabling the executing court to deal with a situation when a decree

holder entitled to possession of the property encounters obstruction from any person. From the provisions in these rules which have been quoted

earlier the scheme is clear that the legislature has vested wide powers in the executing court to deal with all issues relating to such matters. It is a

general impression prevailing amongst the litigant public that difficulties of a litigant are by no means over on his getting a decree for immovable

property in his favour. Indeed, his difficulties in real and practical sense, arise after getting the decree. Presumably, to tackle such a situation and to

allay the apprehension in the minds of litigant public that it takes years and years for the decree holder to enjoy fruits of the decree, the legislature

made drastic amendments in provisions in the aforementioned Rules, particularly, the provision in Rule 101 in which it is categorically declared that

all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under

rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application shall be determined by the Court dealing with the

application and not by a separate suit and for this purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for

the time being in force, be deemed to have jurisdiction to decide such questions. On a fair reading of the rule it is manifest that the legislature has

enacted the provision with a view to remove, as far as possible, technical objections to an application filed by the aggrieved party whether he is the

decree holder or any other person in possession of the immovable property under execution and has vested the power in the executing court to

deal with all questions arising in the matter irrespective of whether the Court otherwise has jurisdiction to entertain a dispute of the nature. This

clear statutory mandate and the object and purpose of the provisions should not be lost sight of by the Courts seized of an execution proceeding.

The Court cannot shirk its responsibility by skirting the relevant issues arising in the case.

This Court also in the matter of Mohd. Ayub Khan Vs. Ashif Ali reported in 2012(2) MPLJ 693 has considered the similar issue and has held

that if a person is objecting to the execution of a decree, he has a remedy to file an application/objection under Order 21 Rules 97, 101 & 103 of

the CPC and that the separate suit is not maintainable. In this regard this Court has held as under:-

The first and foremost question which is to be decided by this Court is whether such a suit filed by the appellants was maintainable in view of

Order 21 Rule 97 & 101 of C.P.C? A plain and simple reading will make it clear that if anybody is objecting to the execution of a decree, he

become an objector and then he has only remedy to file an application/objection under Order 21 Rule 97, 101 and 103 of C.P.C., and no

separate suit would be maintainable in that respect. The Madras High Court has considered these aspect in light of the decision rendered by the

Apex Court in some of the cases and has come to the conclusion that the provisions of Order 21 Rule 97 and 101 of C.P.C., creates an embargo

that no separate suit would lie in respect of the objections/claim made with respect to the property in respect of which a judgment and decree has

been passed. However, an objection in that respect can be raised in the execution proceedings itself under the aforesaid provisions. This particular

aspect is not to be adjudicated once again as it is not res integra. That being so, now it is to be seen whether the appellants could be considered as

objector or not so that they may be eligible to file an application/objection under Order 21 Rule 97 and 101 C.P.C.. The plaint indicates that the

appellants have stated in none else but definite words that they are the owner of the disputed land by virtue of a compromise on the basis of which

a decree has been passed in their favour. The suit for specific performance itself was filed by respondent No.1 on 21.3.1995. On that day, the

decree of compromise was not passed. Of course, the compromise was entered into before filing of the suit by the appellants, with respondents

No. 2,3 and 4, but whether such a fact was disclosed by those defendants to the respondent No.1 or not , are not clear. If the suit was going on

and any right was relinquished unless such a relinquishment is either admitted, registered or acknowledged by the Court, it was not to be acted

upon. The respondent No.1 has categorically contended that the original owner of the land while executing the agreement has disclosed about

making of a Will in favour of respondents No. 2,3 and 4. If that was the situation, whether the Will was to be acted upon or not whether by virtue

of that Will, the respondents No. 2,3 and 4 were bound to execute the sale deed in favour of respondent No.1 or not, nothing has been proved in

that respect. The ingredients of fraud as are required to be proved, were not proved. In absence of such findings, how could it be said that there

was a fraudulent decree which was required to be challenged only by a suit and not otherwise. On the other hand, the appellants were in

possession of the land which was required to be sold in execution of the decree granted in favour of the respondent No.1. If they were of the

opinion that their rights are going to be affected over the said land, they were nothing, but the objectors of the execution of the said judgment and

decree and, therefore, were liable to file an objection under Order 21 Rule 97 and 101 of C.P.C. It was not necessary for them to file a suit

independently.

In the case of Pt. Ramgulam Choubey and another Vs. Mahendra Kumar and another [ILR 1977 MP 693], this Court has considered the

scope of objection, has further dealt with whether a third party can make an objection or not and when a third party became an objector. It has

been categorically held that if somebody is claiming right, title or interest over the property in respect of which a decree has been passed, he has a

right to file an objection under Order 21 Rule 97 of C.P.C. This law has been further considered by the Full Bench of this Court in the case of

Smt. Usha Jain and others Vs. Manmohan Bajaj and others [ILR 1982 MP 837] and the Full Bench of this Court has also clarified the scope of

objection to be raised by an objector under the provisions of Order 21 Rule 97 of C.P.C. As has been stated hereinabove, such law has already

been considered in various cases by the different High Courts and in all such laws, it has been held that if an objection can be made under Order

21 Rule 97 and 101 of C.P.C., there is no right available to file a fresh suit with respect to the very same claim. This being so, the findings

recorded by the Courts below in this respect cannot be said to be perverse.

The issue involved in the present case is squarely covered by the aforesaid judicial pronouncements. In view thereof the fresh suit by the

respondents resisting the execution of the decree passed in the earlier suit is not maintainable. The trial Court while passing the impugned order has

not considered the aforesaid aspect of the matter and wrongly rejected the application holding that the issue of identity of the suit property and the

identity of the property which was subject matter of the suit, is a factual issue, without appreciating that even the said factual issue is required to be

raised before the executing court.

So far as the judgments in the matter of Popat and Kotecha Property (supra) and Union Bank of India (supra) relied upon by counsel for the

respondents is concerned, they are on the proposition that the disputed questions of fact cannot be decided while hearing application under Order

7 Rule 11 of the CPC and not on the scope of Order 21 Rule 97 of the CPC, hence no benefit can be derived by the respondents on the basis of

the said judgments.

In the aforesaid circumstances I am of the opinion that the trial Court has committed patent illegality in rejecting the petitioner''s application

under Order 7 Rule 11 of the CPC. The separate suit filed by the respondents resisting the execution of the decree passed in C.S. No.321-A/95 is

not maintainable and the proper remedy available to the respondents is to raise an objection under Order 21 Rule 97 of the CPC before the

executing court. The application under Order 7 Rule 11 of the CPC is accordingly allowed. The plaint is rejected.

Revision petition is disposed off.